Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-25

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tions set up that there WAS a mis-
]oinder of parties and action!
IN the petition, and tha
, neither the sureties nor Mil.
llseo & Co. were responsible on the bono
Tor the money on bonds received from
the county. Also that the petition did no
allege that Cublith, one of the defendants
had signed the bond. The sureties
pleaded among other things that they
signed the bond WITH the UNDERSTANDING
that the county was TO deposit it's bonds t
the amount of $31, 900 with the Second
National Bank of Westherford, to the
credit OF Milliksn & Co., and that the
county had failed to Go so, and that ia
this respect the contract had been
changed without their consent, and that
they were thereby released from respon-
si6ility. Mill ken Co. clsimed in their
answer that they had entered into s new
contract with p aintiff whereby plaiu'iff
paid them on the 9th day of October, 1888
SIG, 000 in bones and was to pay SIS, 00U
more IN the February following; that
they had performed their part of the
contract up to February, but
that plaintiff failed to &C.
liver the $4,000 of bonds, as it had
i agreed on it's part. They pleaded IN re-
convention $40, QUO value of work done
and profits which would have accrued had
the contract been carried out. Held:
The demurrers were properly overruled,
and also that the omission Of the name of
| Cublith from those, who signed the bond,
did not render the petition liable to eX-
ception. The defendants offered in evil
dence the order of the Commissioners
court Of date the 10Th of September,
1888, which was objected to by the
plaintiff on the ground that it was nego-
tiations and minutes sccruing and entered
previous to writing the contract for the
building Of the courthouse and could not
be introduced to vary the written con-
tract afterwards made by the parties.
Held: The objection was well taken and
the court did not err in refusing to per-
nit the order to be introduced in evil
dence. The evidence of Mill
ken and his co-defendants was
also properly excluded. The plaintiffs
right Of recovery could not be affected by
any secret reason the defendants might
have had for signing the bond when they
could not possibly have been mistaken
as to its terms, and the county had been
guilty of no fraud in obtaining their sig
natures. Milliken, as appears from the
evidence, voluntarily abandoned the con-
tract, hence they were not entitled to in
troduce evidence as to the damages suf
fered by them by reason CT any default of
the plaintiff in not performing their part
of the contract. There was no necessity
to prove the value of the bonds. The
county was bound for their full value,
snd that was the smount of damage SUI
fered by it in consequence OF their being
En- La -,
judgment and it is affirmed Willie, Gu
Morrow 6 Smith vs.. John P. Richard
son; appeal from Ellis. Suit on a prom
issOry note. 1t appears that there had
been at one time the word "renew," or
"reUeWedn written across the face OF the
note sud then erased, or partially erased.
Appellants obje;ted to the admission of
the note in the court below. The objection
vas oVerruled and the ruling assigned
as error. Held: Appellants contend
that this erasure should have been ex-
planned, and admitting the truth of this,
for the sake of argument. this was a
question for the Jury, and the court Sit
ing as judge and jury in this case, there
was no Improperly in it's admission.
The alleged erasure was not in the body
Of the note, and constituting most strong
~ for appellants, the word erased would
have proven no more than thst the note
had been satisfied by giving another. At
frmed. Willie, G J.
A. Moss ys. Kstz P. Meyer; appeal from
Ellis. Suit by appellees against appellant
on account for goods sold. When the
accounts were introduced appellant OBJ
jected, because they showed on their face
that they were not due. The objection
was overruled and the ruling assigned as
error. Held: This was an attachment
suit and the printed headings of the &C
counts contain words about as follows
Terms 30 days discount 5 per cent.
Cash 10 days discount per cent.
We hold that the probable meaning of
these words are that while the terms of
sale were cash, and the money due imme |
diately, yet If the money were paid within |
thirty days discount of per cent, and |
if within ten days 6 per cent. would be |
allowed to the debtor. There was no
necessity for the prayer for the fore closure |
of the attachment in the petition. Affirm !
ed. Willie, G.. J.
j. P. Russell ct al. vs.. Texas and Pa
cific Railway Company; appeal from
Marion. Suit by appellee company to re-
move cloud from title to land situated In
Clay, Wilbarger, Baylor and Dimmitt
counties. Where an administrator de
bonis non is made party to q suit origi-
nslly against former administrator or
executor who had pleaded to the merits
he cannot plead matter in abatement and
cannot urge any matter which by cause
of pleading had been waived by his pre-
decessor. The same is true of any of the
other defendants who were but the rep
OF deceased defendant who
had waived the right to insist upon such
q plea. Also held that as the
minor defendants could only sp-
pear by guardian, or attorney
could not enter an appearance for them.
Held: 1t was error in the court below 20
proceed to adjudicate the rights of the
parties in Marion county when any one
necessary defendant objected proper time
and manner to trial of the cause in S
county other thsn that in which the land
or part of it was situated. It is urged
thst the receiver could not pass title to
the land in controversy, even under the
orders OF the court that appointed him,
unless the legal title to the land had been
assigned to him by the railway company
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